The New York State Senate

officers to refuse disclosure of "personnel records used to evaluate
performance toward continued employment or promotion." This exemption
was adopted in 1976 by the Legislature in order to prevent criminal
defense lawyers from using such records in cross examination of police
witnesses during criminal prosecutions. According to the 2014 annual
report by the State Committee on Open Government to the Governor and the
State Legislature, "this narrow exemption has been expanded in the
courts to allow police departments to withhold from the public virtually
any record that contains any information that could conceivably be used
to evaluate the performance of a police officer."

The evolution of § 50-a has defeated the Freedom of Information Law's
(FOIL) goal of accountability and transparency. FOIL already provides
all public employees, including those protected under § 50-a, the
protections necessary to guard against unwarranted invasions of privacy
and from disclosures that could jeopardize their security or safety.
Furthermore, courts have the ability to protect against improper cross-
examination and determine if police records are admissible in a trial,
without the denial of public access to information regarding police
activity created by § 50-a.

The 1976 enactment of § 50-a may have been necessary to safeguard law
enforcement officers from improper personnel record exposure during
criminal prosecutions, but that is no longer the case today. The general
rules and statutory exceptions of FOIL - for example in instances that
disclosure would constitute an unwarranted invasion of privacy - are
sufficient in protecting police from unfair cross examination by crimi-
nal defense lawyers. Moreover, the State Committee on Open Government
notes that "(S 50-a) creates a legal shield that prohibits disclosure,
even when it is known that misconduct has occurred."  FOIL's public
policy goals, which are to make government agencies and their employees
accountable to the public, are thus undermined by the statute. Outright
appeal of this statute will positively affect public trust in law
enforcement and serve to hold police and other uniformed law enforcement
officials to the same level of accountability applied to all other
public employees:

 
PRIOR LEGISLATIVE HISTORY:

2015-16: A. 9332 - Referred to Governmental Operations
2017-18: A. 3333 - Referred to Governmental Operations

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately